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AGENCY:

ACTION:

SUMMARY:

We, the U.S. Fish and Wildlife Service, have received an application from the Calpine Corporation (applicant) for a 50-year incidental take permit for five species under the Endangered Species Act of 1973, as amended (Act). The application addresses the potential for “take” of one federally listed animal and four federally listed plants. The applicant would implement a conservation program to minimize and mitigate the project activities, as described in the applicant's low-effect habitat conservation plan (plan). We request comments on the applicant's application and plan, and the preliminary determination that the plan qualifies as a “low-effect” habitat conservation plan, eligible for a Categorical Exclusion under the National Environmental Policy Act of 1969, as amended (NEPA). We discuss our basis for this determination in our environmental action statement (EAS), also available for public review.

SUPPLEMENTARY INFORMATION:

Availability of Documents

You may obtain copies of the permit application, plan, and EAS from the individuals in FOR FURTHER INFORMATION CONTACT. Copies of these documents are available for public inspection, by appointment, during regular business hours, at the Sacramento Fish and Wildlife Office (seeADDRESSES). Start Printed Page 33823

Public Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Background Information

Section 9 of the Act (16 U.S.C. 1531et seq.) and its implementing Federal regulations prohibit the “take” of fish or wildlife species listed as endangered or threatened. “Take” is defined under the Act to include the following activities: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect listed animal species, or to attempt to engage in such conduct. However, under section 10(a)(1)(B) of the Act, we may issue permits to authorize incidental take of listed species. “Incidental take” is defined by the Act as take that is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Regulations governing incidental take permits for endangered and threatened species, respectively, are in the Code of Federal Regulations at 50 CFR 17.22 and 50 CFR 17.32.

Although take of listed plant species is not prohibited under the Act, and therefore cannot be authorized under an incidental take permit, plant species may be included on a permit in recognition of the conservation benefits provided to them under a habitat conservation plan. All species included in the incidental take permit would receive assurances under our “No Surprises” regulations (50 CFR 17.22(b)(5) and 17.32(b)(5)).

The applicant seeks an incidental take permit for indirect effects within 10,306 acres of serpentine grasslands associated with the operations and maintenance of the Los Esteros Critical Energy Facility (LECEF) located in Santa Clara County, California. The LECEF Phase 2 would covert the existing facility into a combined-cycle natural gas-fired generating facility by passing exhaust heat, normally released to the atmosphere, through a heat recovery steam generator. The applicant is requesting permits for take of one animal species federally listed as threatened: Bay checkerspot butterfly (Euphydryas editha bayensis) (butterfly). The plan also includes four plant species federally listed as endangered: Coyote ceanothus (Ceanothus ferrisae), Metcalf Canyon jewel-flower (Streptanthus albidus albidus), Santa Clara Valley dudleya (Dudleya setchellii), and Tiburon paintbrush (Castilleja affinis neglecta). Collectively, these five species are referred to as “Covered Species” in the plan.

The applicant owns and manages lands in Santa Clara County, California. Lands owned by the applicant include 34 acres of the Phase 2 LECEF in the City of San Jose and 40 acres of serpentine grassland on Coyote Ridge adjacent to Coyote Creek Golf Drive and northwest of Waste Management's Kirby Canyon Recycling and Waste facility in the City of Morgan Hill, California.

The following actions are proposed under the plan: Implementation and construction of the LECEF Phase 2, operations and maintenance of the Phase 2 combined-cycle facility for a period of 50 years, and implementation of monitoring and management of a 40-acre serpentine preserve; these actions are collectively referred to as the “Covered Activities.” The LECEF Phase 2 is located within a 34-acre parcel, 21 acres previously developed under Phase 1 and 13 acres that will be used as staging and temporary parking during construction of Phase 2. There are no known threatened or endangered species or their habitats located within the 34-acre parcel. However, once the Phase 2 facility is completed, its operation is expected to result in indirect effects from nitrogen deposition within 10,306 acres of habitat for the Covered Species in Santa Clara County, California. Emissions from power plants, vehicles, and industrial development result in deposition of nitrogen compounds (such as nitrogen oxides, nitric acid, and ammonia) onto nutrient-poor serpentine soils. Enrichment of serpentine soils allows nonnative plants to outcompete native species, including the host plants for the Bay checkerspot butterfly and the four listed plants.

The applicant proposes to avoid, minimize, and mitigate the effects to the Covered Species associated with the Covered Activities by fully implementing the plan. The following mitigation measures will be implemented: Establishment of a 40-acre serpentine preserve on Coyote Ridge; implementation of a grazing management plan to benefit the Covered Species; implementation of a monitoring plan for the Covered Species; establishment of a non-wasting endowment in the amount of $541,600 to provide funding for changed circumstances, monitoring, and management of the 40-acre preserve in perpetuity; and purchase of Bay Area Air Quality Management District pollution credits equivalent to 27,945 tons/year for nitrogen deposition.

Alternatives

Our proposed action is approving the applicant's plan and issuing an incidental take permit for the applicant's Covered Activities. As required by the Act, the applicant's plan considers alternatives to the take under the proposed action. The plan considers the environmental consequences of the following four alternatives to the proposed action: No Action; Alternative Site Location; Alternative Project Configuration; and Alternative Technologies.

Under the No Action alternative, we would not issue a permit, and the applicant would not initiate construction on Phase 2. The No Action alternative would result in the applicant violating the terms of a power sales agreement with the California Department of Water Resources, and the U.S. DataPort (DataPort) would obtain electricity from the existing electrical grid, which would conflict with the City of San Jose's California Environmental Quality Act decision for the DataPort to be electrically self-sufficient.

Under the Alternative Site Location alternative, the LECEF Phase 2 would be constructed in a different location; however, construction of Phase 2 anywhere within the same air shed would not avoid the indirect effects to listed species resulting from nitrogen deposition. Since the LECEF is being constructed to supply power to the DataPort, constructing the plant outside of the air shed would likely result in greater ground disturbance since construction would not take place within the footprint of the existing power plant. Additional impacts would occur as a result of connecting the DataPort with a more remote power plant, potentially resulting in additional effects to natural resources, including other listed species.

Under the Alternative Projects Configuration alternative, alternative equipment would have been incorporated into the design of the project. However, the proposed project represents the latest generation of commercially demonstrated combustion and steam turbine technology and is believed to represent the most effective technology currently available in terms of highest power output and lowest emissions. Implementation of alternative equipment could result in less efficient energy production and additional air quality impacts. Start Printed Page 33824

Under the Alternative Technologies alternative, waste heat would involve the export of processed steam, instead of the steam being converted to electricity through the use of a steam turbine under the proposed alternative. Export of processed steam would necessitate a nearby steam host. There are no steam hosts currently available near the existing LECEF Phase 1 site; therefore, a steam host would have to be constructed, resulting in additional impacts outside of the existing 34-acre site.

Under the proposed action alternative, we would issue an incidental take permit for the applicant's proposed project, which includes the activities described above and in more detail in the HCP. The proposed action alternative is not expected to result in the permanent loss of habitat for any of the Covered Species. The proposed project is expected to result in indirect effects to 10,306 acres of serpentine grassland. To mitigate these effects, the applicant proposes to permanently protect 40 acres of serpentine grassland on Coyote Ridge, implement a monitoring and management plan for the Covered Species, establish a non-wasting endowment, and purchase Bay Area Air Quality Management District pollution credits.

National Environmental Policy Act

As described in our EAS, we have made the preliminary determination that approval of the proposed plan and issuance of the permit would qualify as a categorical exclusion under NEPA (42 U.S.C. 4321et seq.), as provided by Federal regulations (40 CFR 1500, 5(k), 1507.3(b)(2), 1508.4) and the Department of the Interior Manual (516 DM 2 and 516 DM 8). Our EAS found that the proposed plan qualifies as a “low-effect” habitat conservation plan, as defined by our Habitat Conservation Planning Handbook (November 1996). Determination of low-effect habitat conservation plans is based on the following three criteria: (1) Implementation of the proposed plan would result in minor or negligible effects on federally listed, proposed, and candidate species and their habitats; (2) implementation of the proposed plan would result in minor or negligible effects on other environmental values or resources; and (3) impacts of the plan, considered together with the impacts of other past, present, and reasonably foreseeable similarly situated projects, would not result, over time, in cumulative effects to environmental values or resources that would be considered significant. Based upon the preliminary determinations in the EAS, we do not intend to prepare further NEPA documentation. We will consider public comments when making the final determination on whether to prepare an additional NEPA document on the proposed action.

Public Review

We provide this notice pursuant to section 10(c) of the Act and the NEPA public-involvement regulations (40 CFR 1500.1(b), 1500.2(d), and 1506.6). We will evaluate the permit application, including the plan and comments we receive, to determine whether the application meets the requirements of section 10(a) of the Act. If the requirements are met, we will issue a permit to the applicant for the incidental take of the Bay checkerspot butterfly, coyote ceanothus, Metcalf Canyon jewel-flower, Santa Clara Valley dudleya, and Tiburon paintbrush from the implementation of the Covered Activities described in the plan, or from mitigation conducted as part of this plan. We will make the final permit decision no sooner than 30 days after the date of this notice.